Sedition — Then and Now, Black and White

The Case for Convicting the Republican Party, From Its Leadership Down to its “Army,” for Sedition

AP-Photo-John Minchillo

The different treatment of this white, right-wing mob, as compared to the recent protests for Black Lives Matter, has been pointed out by many others. Here, I will dig deeper into the history of the disparate treatment of alleged “sedition,” based on the politics and color of those involved, and conclude with my own legal recommendations of what can and should be done if these current criminals are to be treated the same.

The Espionage Act Versus the Black Wobbly

First, we go back to the beginning of the Twentieth Century, which is sometimes referred to as the “Progressive Era.” Women were fighting for the right to vote; workers were fighting for the right to the fruits of their labor; and W.E.B. DuBois and others formed the National Association for the Advancement of Colored People (NAACP). While some of these “progressive” groups continued and supported the racism of the time (Suffragists, including Susan B. Anthony, joined with Southern racists; most labor unions were limited to “white” workers; the Afro-American League, a predecessor to the NAACP, had supported the anti-Asian movement), some embraced a vision of inclusion, diversity, and most of all — Solidarity.

This Progressive Era came to an abrupt end on April 6, 1917, when the US entered World War I. On June 15, 1917, Congress passed the Espionage Act. [40 Stat. 217, as amended by the “Sedition Act” of 5/16/1918, 40 Stat. 553]. Ostensibly passed to protect the US from espionage and sabotage in a time of war, not one bona fide spy was ever tried and convicted under this law. [See Charles and Mary Beard, The Rise of American Civilization Vol. II, pp. 640–644 (Macmillan Co. 1927)]. Instead, it was directed at those who advocated solidarity of all workers, regardless of race or sex. In particular, it was directed at the Industrial Workers of the World (“IWW” or “Wobblies”), who, unlike most other unions, of the time, embraced and encouraged solidarity among all workers, regardless of race or sex.

Ben Fletcher Arrest Photo 1918

Federal authorities moved swiftly to stop this threat of cross-racial organizing by workers. Indictments were issued in September 1917 against prominent IWW leaders, including Ben Fletcher the “Black Wobbly” noted for his organizing of maritime workers. The indictment against Fletcher alleged he “did conspire to prevent, hinder and delay the execution of the laws of the United States pertaining to the carrying on of the war with the Imperial German Government; to injure, oppress, threaten, and intimidate citizens in the free exercise and enjoyment of the right and privilege of supplying the United States with war munitions, supplies and transportation” and of “procuring persons to fail to comply with the registration and draft laws of the United States” etc. In other words, his crime was opposing the war, interfering with the “right” to profit from the war, and encouraging draft resistance.

When Fletcher was tried, along with 92 other Wobblies, the Chicago Tribune gave an unintended compliment to the solidarity of the IWW in its note under Fletcher’s courtroom sketch: “Ben Fletcher, only Negro on trial, quite the pet of some of the brothers — one hugged him openly in court.” [Chicago Tribune 4/5/1918 at p. 5]. W.E.B. DuBois expressed this from a different perspective: “So it turns out that not only are there Negroes who are members of this militant workingmen’s organization, but some — or at least one — prominent enough to be regarded as worth putting behind the bars with the leaders.” [Crisis June 1919 at p. 60].

Fletcher was sentenced to ten years in federal prison and a fine the equivalent of nearly a half-million in 2020 dollars. Wobblies and their allies later pushed President Harding to pardon Fletcher. The response of the Feds opposing the pardon explains the true reason for his imprisonment in the first place:

“He was a negro who had great influence with the colored stevedores, dock workers, firemen, and sailors, and materially assisted in building up the Marine Transport Workers Union which at the time of the indictment had become so strong that it practically controlled all shipping on the Atlantic Coast.” [from National Archives, as quoted in Phillip Foner, The IWW and the Black Worker, at p. 59.]

[For more on Ben Fletcher, see Peter Cole, Ben Fletcher: The Life and Times of a Black Wobbly (PM Press 2021 2nd Ed.) See also the Supreme Court opinion upholding the conviction of other Wobblies in Schenck v. United States, 249 U.S. 47(1919).]

The Smith Act

In 1940, the Espionage and Sedition Act was amended to what we know now as the “Smith Act.” [54 Stat. 670]. The Communist Party of the United States (CPUSA) originally supported the Smith Act, hoping it would be used against their rival Trotskyites, who were then against war with Hitler. Instead, it was used against the CPUSA leaders.

While the USSR was our ally against fascism in Europe in World War II, the FBI was putting together a list of people who they labelled “Premature Anti-Fascists.” In other words, they had opposed fascism (such as supporting the Republic in the Spanish Civil War, or opposing the Klan at home) before we were formally at war with fascism — the “Antifa” of the 1940’s. After the War, this list became the basis for blacklists and prosecution.

A group of CPUSA leaders were indicted for violating the Smith Act. The CPUSA itself was named as a criminal conspiracy. Although none of the defendants themselves ever advocated or participated in force or violence to overthrow the government, the prosecution referred to writings of Lenin to prove that element of the charges. When the case reached the Supreme Court, it upheld the convictions, explaining that Justice Holmes “clear and present danger” test meant that:

“If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required.”

Dennis v. United States, 341 U.S. 494, 509 (1951).

HUAC and Paul Robeson

Besides facing prosecution under the Smith Act, the Premature Antifascists were blacklisted, deported if not native-born citizens, and if U.S. Citizens, had their passports revoked. One of these was Paul Robeson, the renowned singer, actor, lawyer, football star, and most of all, activist.

On June 12, 1956, Robeson was ordered to testify before the House Committee on Un-American Activities. Robeson refused to answer questions concerning his political activities and lectured committee members Gordon H. Scherer and Chairman Francis E. Walter about African-American history and civil rights. In his booming voice, Robeson made clear why he was there:

I am not being tried for whether I am a Communist, I am being tried for fighting for the rights of my people, who are still second-class citizens in this United States of America. . . . I stand here struggling for the rights of my people to be full citizens in this country. And they are not . . . and that is why I am here today. You want to shut up every Negro who has the courage to stand up and fight for the rights of his people, for the rights of workers, and I have been on many a picket line for the steelworkers too. And that is why I am here today.

When Scherer asked him, “Why do you not stay in Russia?” Robeson responded:

[For more on Paul Robeson, see Martin Duberman, Paul Robeson: A Biography (New Press 1989)].

Lolita Lebron and the 1954 Attack on the Capitol

Lolita Lebron arrested after Capital attack 1954 — AP

News reports and historians have said that there has not been another armed attack on the Capitol since the War of 1812. That is not true.

Since 1898, Puerto Rico has been a “territory” of the United States, without the status of either a state or an independent country. The Puerto Rican Nationalist Party (PRNP) has worked for the independence of Puerto Rico since 1922. In 1948, several laws were passed in the territorial government, including one based on the Smith Act, called the “Gag Law,” which made it illegal to display the Puerto Rican flag, sing patriotic songs, or even talk about independence. This repression drove the PRNP to take more drastic actions towards its goals.

On March 1, 1954, Dolores “Lolita” Lebron Sotomayor, Rafael Cancel Miranda, Andres Figueroa Cordero, and Irvin Flores Rodríguez, unfurled a Puerto Rican flag and started firing from the “Ladies Gallery” of the House of Representatives chamber of the Capitol. Nobody was killed, although several were injured. Unlike Trump’s Army who killed at least one person, Lolita and the others were immediately arrested. She was tried and given what was effectively a life sentence. [Lebron v. U.S., 229 F.2d 16 (D.C. Cir. 1956)].

After serving 25 years, President Jimmy Carter commuted her sentence, along with the others who remained. She continued her activism after being released, including the 2001 occupation of the restricted area in Vieques. She died in 2010.

The Legal Case Against Trump, the Republican Party, its Leaders and its “Army”

Prosecution Exhibit A

Donald Trump’s campaign website has, and (at this writing) still does, explicitly call for an “Army for Trump,” to “Fight with President Trump” in his battle with “the Radical Democrats and the Fake News Media.” Trump and his campaign called for the “rally” which led to the assault on the Capitol. At that rally, he called on his “Army” to “fight” to stop the “steal” of the election, telling them “to walk down — and I’ll be there with you — we’re going to walk down, we’re going to walk down to the Capitol” building, in order to stop the count of electoral votes by Congress, pursuant to Art. II, § 1 of the U.S. Constitution. At that rally, his personal attorney Rudy Giuliani called for a “trial by combat” over the election. Even members of Congress, state lawmakers, and Republican Party officials have been making similar calls for violence over the past few months, or supporting these calls by others. Some were even seen among the mob storming the Capitol.

Based on these calls to arms by their Party Leaders, the mostly-white mob broke through the Capitol building, waving the Confederate flag of rebellion, and violently interrupting the legal proceedings of counting the electoral votes. Unlike Lolita Lebron, they were not immediately arrested, but allowed to occupy the building for hours — trashing it, stealing government property, and killing one officer.

I submit to you that, based on these undisputed facts, not only the members of the mob, but the Republican leadership, can be charged and convicted for rebellion, seditious conspiracy, and advocating the overthrow of the government. The Republican Party today is just as much a “conspiracy” to overthrow the government as the Communist Party was in the 1950’s. The evidence against Republicans is much more than that used to convict Ben Fletcher and his fellow Wobblies, and the leadership of the Communist Party. The only difference between those convicted then and the Republic Party today, is their political beliefs and the color of their skin.

Let us take a look at the law as it exists today:

18 U.S.C § 2383 — Rebellion or insurrection

Makes it a felony for one who “incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto

18 U.S.C. § 2384 — Seditious conspiracy

Makes it a felony conspiracy for two or more people to conspire to “overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof

18 U.S.C. § 2385 — Advocating overthrow of Government

Makes it a felony for one who knowingly “advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States” or “helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof.

As in the Smith Act prosecutions, the evidence is clear that “the leaders of the [Republican] Party in this country, were unwilling to work within our framework of democracy, but intended to initiate a violent revolution whenever the propitious occasion appearedandthat the literature of the Party and the statements and activities of its leaders, . . . advocate, and the general goal of the Party, was, during the period in question, to achieve a successful overthrow of the existing order by force and violence.” Dennis v. United States, 341 U.S. 494, 497.

The Party, from its leadership down to the rank-and-file “Army” have intentionally engaged in, or “given aid or comfort to,” a “rebellion or insurrection against the authority of the United States,” in violation of 18 U.S.C § 2383.

The Party leadership has conspired tooverthrow, put down, or to destroy by force the Government of the United States,” and “to prevent, hinder, or delay the execution of any law of the United States” and to “by force, or by force to seize, take, or possess any property of the United Statesin violation of 18 U.S.C. § 2384.

The Republican Party is a “society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violenceso that anyone who “becomes or is a member of, or affiliates with” it knowing the purposes thereof” is guilty, under 18 U.S.C. § 2385.

For these crimes, the Party, from its leadership down the rank-and-file “Army” can “be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.” 18 U.S.C. § 2385.

Representing the Working Class as a lawyer since 1982. Questioning everything, especially myself.

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